Intolerance of minorities and differences continues to be evident in society and, thus, will also be present in workplaces. While it is true employers have a legal obligation to prohibit adverse employment actions or harassment on the basis of protected status, compliance with the law or meeting EEO quotas does not amount to embracing a diverse workplace. Employers focusing on creating a more welcoming and inclusive workplace are also working towards a more open and positive workplace for all employees, not just those associated with the majority, whether that be defined in the narrow confines of protected status or the broader aspect of differences. An employer who desires to honor and value differences in its employees adopts practices and rewards that reflect that desire. Doing so begets a more loyal and productive employee base. As an added benefit to creating an ethical work environment, businesses with a diverse workforce dependent upon their employees to sell a service or product are better able to attract diverse clientele, where a homogenous workforce cannot. Diversity and inclusivity increase a business’ footprint.

Abraham Maslow’s “Hierarchy of Needs” identified needs in three categories – basic, psychological and self-fulfillment – that can be met or not in a workplace. An employer recognizing this would encourage, if not require, a workplace that honors differences and would implement measures that do not normalize or erase those differences. While presumably most agree with this sentiment, the understanding comes in the form of how accepted individuals feel in the workplace and if they sense they are valued. Much will depend on what an employer requires with regard to workplace diversity and inclusion, or what an employer is willing to tolerate or ignore. Even more can be gleaned from what management honors with reward and acknowledgment. Creating a diversity committee or hiring a diversity leader without tying efforts to meaningful reward is disingenuous and likely a hindrance to an inclusive workplace climate.

An accepting workplace is one that reflects diversity and differences. Difficulty retaining diverse groups of employees is more likely an indicator not of the workforce but of the workplace climate. If excelling in a workplace requires conformity, differences are not accepted. If individual excellence is judged by the same standard, an employer would need to work hard to ensure recognition of all qualities that the business needs for success.

An employer considering its workplace might ask:

When we seek recruits, do we seek people who “fit” with our culture? Or do we seek recruits who represent all cultures reflected in our community?

What are we doing to grow a workforce that meets our growth vision (which may or may not be reflected in the community)?

What demographics are under-represented in our workforce when compared to the community and other businesses similar to ours?

What do our under-represented employees say about our workplace culture?

How receptive are we to different ideas and different approaches? How committed are we to hiring people who not only do not look like us but also do not think, sound, talk and act like us?

What messages are our leaders sending? How involved in diversity efforts are our leaders?

Are we receptive to criticism, complaints, ideas about doing things differently?

How do we react when someone brings us an idea? How do we receive different ideas?

Are our meetings open and communicative, or stilted and silent?

How many paths to achievement do we offer?

Is there only one way to become successful or are there many ways?

Who is successful in our company? How do we define success?

What do we value? How is that reflected in our compensation system?

What does our compensation system say about what we value? How does that differ from what we say we value?

Who receives the hand-up in our workforce?

Who am I helping up? Who helped me? Do they look, think, act and sound like me?

Diversity training should reflect on these issues rather than compliance. It should seek to invoke thought in the leaders, managers and employees on their efforts to encourage a diverse and inclusive workplace, what conscious and subconscious biases and prejudices they bring to the workplace and how they might help to make the workplace a more welcoming and inclusive workplace. Training should be integrative, not passive, and should entertain open discussion and focused efforts designed to grow and maintain an inclusive workplace simply because doing so creates a healthy, happier and more productive workforce that benefits the employer as much as the employees. It should be consistent if not constant, as opposed to annually. Most importantly, it should be reflected in all an organization does.

Join HSB’s Employment Law team for our next webinar on June 3, 12-1 PM, for an update on COVID-19’s continued impact on SC employers. Chris Gantt-Sorenson and Perry MacLennan will provide an update on workplace issues now that employees are back at work, including safety, leave requests, unemployment, compensation changes, and more.

HSB is an approved SHRM provider and this course will be submitted for SHRM, HRCI and SC CLE credits.

Pertinent COVID-19 updates were recently issued by the CDC, DOL OSHA, EEOC and IRS. This blog contains quick summaries of the information contained in those updates with links for quick access to the resources. Employers are also reminded of the importance in fighting unemployment claims that are unwarranted and this blog provides the resources available from SCDEW to employers for doing so easily.

Centers for Disease Control (CDC) – May 3 and May 6, 2020

Issued Interim Guidance for (non-healthcare) Businesses and Employers for return to work and helpful FAQs

CDC advises all employers should implement and update as necessary a plan that:

Is specific to your workplace,

Identifies all areas and job tasks with potential exposures to COVID-19, and

Includes control measures to eliminate or reduce such exposures.

Additional CDC Guidance details processes by topic in the form of FAQs

Suspected or Confirmed Cases of COVID-19 in the Workplace

Reducing the Spread of COVID-19 in Workplaces

Healthy Business Operations

Cleaning and Disinfecting

Special Protections for Employees from Customers/Visitors

Department of Labor (DOL) – May 7, 2020

*A reminder that the Wage and Hour Division (WHD) began FFCRA enforcement April 18 (in March 24 Guidance) and April 20 per DOL announcement

Temporary Staffing Agency/Joint Employer – Which employer might be responsible to the temporary staffing employee under FFCRA based upon the joint employer analysis

Teleworking Employee – Employees who are already teleworking are still eligible for both FFCRA leaves assuming they qualify under the requirements. It is permissible to ask for updated information justifying the leave or what has changed if employers do so cautiously.

Employer must determine if employee would be able to telework but for being required to comply with the order.

Employee must provide a signed statement containing employee’s name, date for leave requested, the COVID-19 qualifying reason for leave and a statement that employee is unable to telework or work because of the COVID-19 reason.

Employees who telework are permitted to use intermittent leave, which may be taken liberally (subject to agreement with employer).

Employers and employees should work together to implement a flexible schedule that works with both.

FFCRA EPSL #2 for symptoms of COVID-19

The DOL reminds employers that an employee needing to take leave for treatment of COVID-19 symptoms must provide the doctor’s name and date of treatment.

Final Rule – paid sick leave limited to time employee cannot work due to illness or taking time to obtain medical diagnosis.

Employee may not take paid sick leave without seeking a medical diagnosis.

The DOL reminds employers that minimal documentation required is intentional to slow the spread.

Summer childcare – The DOL addressed situations where employees seek FFCRA leave for children in the summer when school is out. The DOL states FFCRA leave is only permissible if the leave would otherwise meet FFCRA requirements.

For leave to care for child due to closure of schools or day care, the employee must provide a statement that includes the name of child being cared for, name of school or child care provider and that it is closed due to COVID-19, and a statement that no other suitable person is available to care for the child during the period of requested leave.

Reminded employers that enforcing EEO laws do not interfere with or prevent employers from following CDC or DHEC guidelines.

Identifies permissible employee inquiries do not violate the Americans with Disabilities Act (ADA)

Temperature checks

COVID-19 tests

Must be job-related and consistent with business necessity

Must be applicable to all employees

Test must be reliable, safe and accurate

Screening

Limited to COVID-19 conditions

Employers may not inquire about underlying conditions

Employers are permitted to request doctor’s notes (but be flexible with workers in format and ability to provide)

Reminded employers to adhere to ADA confidentiality of medical screenings as well as all other medical information

Notes employees entitled to exemptions from vaccinations on religious or other recognized grounds

SCDEW

Employers should notify SCDEW if any worker refuses to work because they are not eligible for unemployment insurance. An Employer should submit the Offer of Work form (UCB-261) to SCDEW if an employee is refusing to return to available work. These additional resources will assist employers in ensuring their experience ratings are not impacted by employee attempts to collect unemployment insurance when it is not available to them.

The Updated Plan provides guidance to area offices for handling COVID-19 complaints, referrals and severe illness reports. For communities experiencing either a sustained elevated transmission or a resurgence, OSHA will increase its inspections and directs area offices to prioritize on-site inspections to high-risk workplaces (hospitals or healthcare providers treating COVID-19 patients) and workplaces with high numbers of complaints or known COVID-19 cases unless on-site inspection is not possible. In that case, a rapid response investigation will be initiated. For those areas where the spread of COVID-19 has significantly decreased, OSHA will return to its initial inspection policy issued at the outset of the COVID-19 crisis in the OSHA Field Operation Manual (FOM), CPL 02-00-164, Chapter 2, though it will continue to prioritize COVID-19 inspections, usually through informal phone/fax and rapid response investigations. The remainder of the Updated Plan mirrors its April 13 guidance which details what an OSHA inspector will evaluate including the step-by-step process it detailed in its OSHA COVID-19 guidance.

OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:

The case is a confirmed case of COVID-19, as defined by the (CDC);

The case is work-related as defined by 29 CFR § 1904.5; and

The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

However, recording the COVID-19 diagnosis on form 300 and reporting it as required by OSHA does not mean the Employer will be subject to a violation.

OSHA understands most employers will not know whether an exposure was caused in the workplace or not. Additionally, employers showing a good faith effort to protect its workplace (through OSHA COVID-19 Guidance) will be entitled to discretion.

IRS issued guidance under Section 125 Cafeteria Plans and related to High Deductible Health Plans providing increased flexibility with respect to mid-year elections under Section 125 plans as it relates to employer-sponsored healthcare coverage, flexible spending accounts, and dependent care assistance programs. Employees may revoke or make existing plan elections, enroll in different health plan options sponsored by the same employer, or change from self to family coverage. Employers may also increase flexibility in FSAs and dependent care assistance programs. Unused amounts in those two accounts may also be used for medical spending.

The final rule permits employers to provide additional pay, such as bonuses, commissions or premiums, to employees when using the fluctuating workweek method of pay which permits employers to offer more flexibility in scheduling to comply with COVID-19 safety measures. However, employers should consider how that might impact regular rate of pay depending on the payment. The DOL states that the fixed payments should be evaluated to determine if they should be included in the regular rate of pay for purposes of calculating overtime.

As your business navigates returning to work and continuing operations, review the resources outlined here and stay tuned to HSB’s blog as we keep you up-to-date on the latest guidance.

If you have questions about this topic or other employment law matters, please contact Chris or the HSB Employment Law practice team.

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South Carolina businesses have either continued to operate or are reopening in a confusing and uncertain environment with COVID-19 remaining a real threat for the foreseeable future based on the infection data provided by DHEC and CDC. In order to avoid liability, employers will need to implement detailed protocols to keep their employees as safe as possible and to avoid any COVID-19 outbreak. This post summarizes guidance issued by OSHA and the CDC, the two authoritative agencies charged with addressing workplace safety. It is meant as a resource to all businesses and employers, whether returning to work, or continuing operations in compliance. OSHA Guidance (with reference to CDC guidelines) should be considered in developing your company’s own internal processes and procedures. Specifically, a written plan needs to be put into place carefully considering the guidance highlighted in this blog post.

This post details OSHA’s COVID-19 Guidance and the CDC’s Interim Guidance for Businesses and Employers responding to COVID-19 but also provides a number of additional resources for employers to consider.

OSHA’s COVID-19 Guidance is a helpful and detailed step-by-step guide to protecting your workforce. In addition, OSHA indicated in its April 13 Interim Enforcement Memorandum that it will analyze an employer’s compliance with its OSHA COVID-19 Guidance and the CDC recommendations to determine if employers have done what they can to protect their workforce from exposure to COVID-19. In an April 16 Temporary Enforcement Memorandum, OSHA indicated it will exercise discretion in issuing citations when an employer shows its good faith efforts to eliminate or reduce exposure. Complying with OSHA’s COVID-19 standards is recommended for showing good faith.

While OSHA’s COVID-19 Guidance is not an official regulation, it is what OSHA believes is the industry standard for complying with OSHA’s General Duty Standard, Section 5(a)(1):

Requires employers to “provide their employees with a workplace of employment free from recognized hazards that are causing or likely to cause the death or serious physical harm.”

Have PPE available to protect those identified by the CDC as at-risk employees from exposure, listed below. Note: EEOC Pandemic Guidance reminds employers they cannot ask about any underlying conditions. Employers can advise their workforce that additional protections are available for CDC at-risk categories and to report to HR if any apply.

immunocompromised – Many conditions can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications

Quarantining employees who have a fever, symptoms of COVID-19, were exposed to COVID-19, traveled to hot spots, or by means of travel are deemed risky. Quarantine time 2-14 days

Reporting exposure, diagnosis, and travel using Daily Inquiry Form and temperature testing (of all visitors and employees)

PHI/ADA confidentiality should be maintained

Process for isolating infectious individual

Assign to specific role per shift for immediate removal of an employee with symptoms or signs of COVID-19 and train the assigned workers

Identify location within employer’s spaces where access may be restricted and that is separate and apart from other common areas or areas where the employees are located. Be sure to have separate spaces for those who are diagnosed or have COVID-19 and those who have symptoms.

Equip the isolation room with masks (different than PPE other workers wear so that other workers do not confuse it) and gloves for use by individual possibly sick and also worker carrying out isolation duties

Employers must respond to written requests within 5 days after receiving a request and have 15 days to provide records

Rapid Response Investigations – be careful of what is provided/stated as other citations may arise from the response

CDC Guidelines

The CDC guidelines are referenced by OSHA in its April 13 Interim Enforcement Memorandum that employers should incorporate the CDC’s recommendations into business operations to ensure workplace safety. The CDC issued updated Interim Guidance for (non-healthcare) Businesses and Employers on May 3 that details the role businesses and employers have in responding to COVID-19. The CDC also issued helpful updated FAQs for businesses and workplaces on May 6, 2020.

The Interim Guidance recommends businesses and employers:

Consider how best to decrease the spread of COVID-19 and lower the impact in your workplace by taking steps designed to:

Prevent and reduce transmission among employees

Maintain healthy business operations

Maintain a healthy work environment

This blog will only detail the first category of prevention recommendations that specifically should be considered when preparing the plan for maintaining workplace safety as recommended in the OSHA COVID-19 guidelines above, but businesses and employers should review the other two for recommendations on how to comply with processes as well as keep operations running during any exposure:

Actively encourage sick employees to stay home

Consider daily in-person or virtual health checks

Maintain social distancing

Conduct them safely with the appropriate PPE

Follow EEOC Guidance regarding health checks

Keep the screenings as private as possible

Identify where and how workers may be exposed to identify workplace hazards

Issue PPE where administrative and operational controls are unable to offer complete protection

Encourage employees to wear cloth face coverings

Post CDC guidelines for employees and visitors

Separate sick employees

Take action if an employee is suspected or confirmed to have COVID-19

Unless it has been more than 7 days since the sick employee used the facility

Shut down the area(s) where the possible infection could occur

Wait 24 hours or as long as possible before cleaning and disinfecting and increase ventilation in the space during that time

Clean as required by the CDC guidelines

Determine which employees may have been exposed

Inform them of their possible exposure (but don’t tell them who) and instruct them to remain home 14 days

The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control (CDC);

The case is work-related, as defined by 29 CFR § 1904.5;

Work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness

Work-related is presumed for exposures occurring in the work environment

The case involves one or more of the recording criteria set forth in 29 CFR § 1904.7

Death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant illness or injury diagnosed by a physician.

Employers must report fatalities to OSHA within 8 hours and in-patient hospitalizations within 24 hours.

In regards to inspections, OSHA’s Interim Enforcement Guidance will focus inspections on facilities with high-risk job categories (as identified in the OSHA COVID-19 guidance) and those experiencing outbreaks. Inspections will be prioritized for fatalities and imminent danger exposures with particular attention given to healthcare organizations and first responders who are exposed to COVID-19 without PPE. Otherwise, OSHA will perform investigations through Rapid Response Investigation (RRI), telephone calls to the employer and document requests. OSHA will initiate an RRI for Employer-reported hospitalizations. Employers must respond to written requests within 5 days after receiving a request and have 15 days to provide records. We recommend you seek advice and counsel before providing any response to an RRI or other OSHA request.

OSHA’s General Duty Standard, Section 5(a)(1) requires employers to “provide their employees with a workplace of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.” OSHA’s Interim Enforcement Response Plan outlines what OSHA’s inspectors will consider in determining if a workplace has properly protected its workers:

Inspectors will determine if an Employer has implemented the measures recommended in OSHA’s COVID-19 Guidance for Employers/Workplaces.

Inspectors will also evaluate if Employers are following the CDC guidelines for workplaces.

Inspectors will consider if employers are issuing the proper PPE protections for employees based on its various PPE standards.

Inspectors will also inquire as to what protections are being provided to those employees who have been identified by the CDC as at risk for developing severe complications from COVID-19. However, the Equal Employment Opportunity Commission (EEOC) specifically advised employers against inquiring into any employee’s underlying health conditions in its Pandemic Guidance; doing so will violate the Americans with Disabilities Act (ADA). Therefore, we recommend employers include in their COVID-19 Policy or Notices a list of the risk factors and ask any employee who may have one of the factors to contact human resources for additional PPE or protections so as to comply with the OSHA standard but not violate the ADA.

Those categories are:

Being 65 years of age or older;

Being on immunosuppressive drug therapy or otherwise being immunosuppressed;

Having a history of smoking; or

Having any of the following medical conditions: cardiovascular disease, asthma or other pulmonary disease, renal failure, liver disease, cancer, or diabetes.

OSHA acknowledges employers not in healthcare or emergency response may have difficulty making a determination as to exposures occurring at work and will not enforce § 1904.5 unless:

There is objective evidence that a COVID-19 case is work-related, for example, close working conditions without explanation, or

Situations where the employer knew or should have known of risk.

OSHA will also exercise discretion when an employer can show good faith efforts to comply with its COVID-19 safety and health protections.

The Occupational Safety and Health Administration (OSHA) issued numerous directives in March and April 2020 related to COVID-19. These include Interim Guidances about protections that should be used for employees that have a higher risk level of occupational exposure by job category as well as those lower-risk categories, steps an employer should take to isolate potentially infectious or infectious individuals depending, and cleaning and decontamination recommendations. Four of the Temporary Enforcement Memorandums deal only with the Respiratory Protection Standard in response to the Presidential Memorandum requiring conservation of N95 masks for healthcare workers. The OSHA standards, which are applicable to all employers who supply respirators to their employees, list appropriate alternatives to N95, when expired or used masks can be used and ranked permissible sources for respirators, among other requirements.

OSHA also issued an Interim Enforcement Response Plan for COVID-19 that details what its inspectors will evaluate to determine if an employer has implemented appropriate measures to protect its workforce. It is wise for employers to use the Interim Enforcement Response Plan as a checklist of what should be implemented in their workplaces. It not only provides a detailed plan of what employers should be doing in their workplaces to protect employees and meet OSHA’s requirements for health and safety but will also serve as an employer’s best plan for avoiding citations. Employers should take note that OSHA will exercise discretion in citations for employers in non-healthcare or first responder settings if they observe an employer’s good faith efforts to comply with OSHA’s COVID-19 guidance and CDC recommendations.

OSHA’s COVID-19 Guidance was issued for non-healthcare employers and details specific steps employers must take and recommends employers do the following:

Employers should prepare a preparedness and response plan to protect the workforce while continuing business operations.

Employers should implement all of the following workplace controls

Implement environmental and operational controls, considered by OSHA to be the most important measures to adopt to reduce the potential of exposure;

Evaluate the various employment positions under the four risk levels identified in the Guidance and issue proper PPE to address the risk of exposure;

Implement general infection prevention measures for safe workplaces including examples of PPE; and

Implement a process for isolating ill people.

These recommendations are more specific and in addition to the initial hygiene, exposure, quarantine and travel recommendations the CDC made before COVID-19 was declared a pandemic. Be sure to check out HSB’s Essential Services Guide to Keeping Workplaces Safe.

Within the last two weeks, many laws, orders and guidance have been approved and published regarding the administration of unemployment and employee financial relief. We discuss below the U.S. Department of Labor’s (DOL) guidance providing clarity to states on how to administer the expanded unemployment benefits under the Coronavirus Aid, Relief and Economic Security Act (CARES Act) and the Executive Order issued regarding COVID-19 Support Payments.

On April 10, 2020, the DOL published its third Unemployment Insurance Program Letter (UIPL) 17-20, which provides further guidance to state governments as they implement the CARES Act, including the Pandemic Emergency Unemployment Compensation (PEUC) program. This supplements the guidance issued in UIPL No. 15-20 and 16-20.

UIPL No. 15-20 clarifies the Federal Pandemic Unemployment Compensation (FPUC) provision of the CARES Act, under which eligible individuals will receive $600 per week, in addition to the weekly benefit amounts they are otherwise eligible to receive for weeks of unemployment ending on or before July 31, 2020.

Who is eligible for the extra $600 payment?

Individuals receiving regular unemployment compensation (UC) under state programs including, but not limited to the PEUC; Pandemic Emergency Assistance (PUA); Extended Benefits; Disaster Unemployment Assistance; and payments under the Self-Employment Assistance program are eligible.

When is the extra $600 payment available?

This payment is available from the week of unemployment starting on or after the date in which South Carolina, or any other state, enters into an agreement with the DOL, through the week of unemployment ending on or before July 31, 2020. Governor Henry McMaster signed an agreement on March 28, marking the start of the benefit payout period for South Carolina. If South Carolina is unable to immediately pay FPUC benefits in the week following the execution of its agreement with the DOL, then it must provide retroactive payments to those eligible for FPUC.

UIPL No. 16-20 provides guidance on the PUA provision of the CARES Act.

Who is eligible for PUA benefits?

PUA expands unemployment benefits to certain workers who are not customarily entitled to unemployment insurance (UI) benefits under state law, including self-employed individuals, independent contractors or those who have exhausted regular unemployment benefits. Other examples of “qualifying COVID-19 related circumstances” for PUA eligibility include:

An individual who is a caregiver of a child unable to attend school due to COVID-19 closures;

An individual unable to reach their place of employment because it violates a state’s stay-at-home order that was instituted to combat the spread of COVID-19;

An individual who has quit a job as a direct result of COVID-19 because the individual has been diagnosed with COVID-19 and continuing work activities is not possible by virtue of the diagnosis or condition;

An individual whose immune system is compromised by a serious health condition and he or she has been advised by a health care provider to self-quarantine in order to avoid the greater-than-average health risks the individual might face if he or she were to become infected; and

An individual who works as an independent contractor with reportable income and is unemployed, partially employed, or unable or unavailable to work because the COVID-19 pandemic has severely limited his or her ability to continue performing customary work activities, thereby forcing the individual to suspend such activities.

How will PUA claims be processed and administered?

These claims are subject to the same filing and determination process as typical UI benefits to the South Carolina Department of Employment and Workforce (SCDEW). When processing PUA claims, the state will be required to verify that individuals are not entitled to regular unemployment insurance benefits. If an individual’s eligibility for regular unemployment is uncertain, then the state must first require the individual to file an initial claim for regular unemployment insurance. If the individual is subsequently disqualified from regular benefits, then the state may consider the individual for PUA eligibility.

Under the PEUC program, according to UIPL 17-20, states can provide up to 13 weeks of federally-funded benefits to qualified individuals who:

have exhausted all rights to regular compensation under state law or federal law with respect to a benefit year that ended on or after July 1, 2019;

have no rights to regular compensation with respect to a week under any other state UC law or federal UC law, or to compensation under any other federal law;

are not receiving compensation with respect to a week under the UC law of Canada; and

are able to work, available to work and actively seeking work, although states must offer flexibility on “actively seeking work” where there are COVID-19 impacts and constraints.

COVID-19 Support Payments

On April 8, 2020, Governor Henry McMaster issued Executive Order 2020-22, providing employers the opportunity to make voluntary COVID-19 Support Payments to employees, who also may receive UI benefits, to offset the financial impact of employees being furloughed. Typically, payments of this kind would affect the employees’ eligibility for UI benefits but in this case, the Governor’s Executive Order provides a break for COVID-19 Support Payments.

Employers that are considering making this COVID-19 Support Payment MUSTsubmit the plan to SCDEW prior to making any payments. The form can be submitted electronically to legal@dew.sc.gov. Submitting the plan and obtaining approval before any payments will ensure the payments are not considered “wages” under SC law. Conditions for the payments to fall within the Order are as follows:

The payment must be made in response to furloughing the employee.

The payment must be for services rendered by the employee in the past.

The employee (or the employee’s estate) must not be obligated to repay the payment under any circumstances.

The payment must not obligate the employee to perform or not perform any act in connection with the individual’s status as an employee.

Employers do not have to wait on approval from SCDEW before proceeding with COVID-19 Support Payments, but failing to submit the plan to SCDEW or not complying with the Executive Order may affect the employees’ eligibility for UI benefits.

HSB’s Employment Law team continues to monitor the COVID-19 pandemic and its impact on South Carolina employers. Please join us for a webinar on April 22nd, from 12-1 PM, where Chris Gantt-Sorenson, Perry MacLennan and Demetrius Pyburn will provide an update for employers on COVID-19 issues including the FFCRA, unemployment, compensation changes and more!

Businesses operating on-site during the COVID-19 pandemic must take extra precautions to ensure they are not subjecting their employees and others on-site to an outbreak that can be avoided by reasonable protections. Business must, therefore, ensure their employees are either maintaining the most current guidelines on social distancing or provide tools reasonably intended to protect those workers that are unable to do so. OSHA has released guidance on preparing workplaces for COVID-19, available here. OSHA does not issue any new standards but directs businesses to OSHA’s General Duty Standard, which requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or likely to cause the death or serious physical harm to . . . employees.” When in doubt, place the safety of employees (and any persons on-site with the workers such as patients, residents, customers, and workers from other companies) as priority.

Note also that OSHA regulations state employees may refuse to come to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSHA) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

Employers should develop an infectious disease preparedness and response plan that can help guide protective actions against COVID-19. Plans should consider and address the level of risk associated with worksites and job tasks employees perform within the four risk categories outlined in the OSHA COVID-19 guidance.

Consider how employees might become exposed, from ingress and egress to the building, common area usage and work duties. Ask where, how and to what extent workers may be exposed, including from the general public, customers or other coworkers. Consider what duties each employee has and whether those duties can be performed while maintaining social distancing.

OSHA also recommends employers analyze types of controls to reduce exposure to hazards without relying on employee behavior:

Install high-efficiency air filters;

Increase ventilation rates in the work environment;

Install physical barriers, such as clear plastic sneeze guards; or

Install a drive-through window for customer service.

Review federal, state and local recommendations during development of contingency plans for situations that may arise as a result of outbreak including:

Increased rate of worker absenteeism;

The need for social distancing, staggered work shifts, downsizing operations, remote service delivery, etc.; and

Interrupted or delayed supply chains and deliveries.

Determine whether it is appropriate to change work policies or procedures to reduce or minimize exposure to a hazard.

Minimize contact among workers, clients and customers by replacing face-to-face meetings with virtual communications and implementing telework if feasible.

Establish alternating days or additional shifts that reduce the total number of employees in a facility at a given time, allowing them to maintain safe distance from one another while maintaining a full onsite work week.

Develop emergency communications plans, including a forum for answering employee concerns and internet-based communications, if feasible.

Implement infection control practices, including:

Provide adequate, usable and appropriate training and education about business-essential job functions and worker health and safety, including proper hygiene practices and the use of any workplace controls (including personal protective equipment).

Implement affirmative daily reporting regarding COVID-19 symptoms from your employees. Implement temperature testing as well if the employer implements a process that protects private health information under HIPAA and adheres to the confidentiality requirements of the Americans with Disabilities Act (ADA).

Although an employer may not run afoul of the ADA, employees who report individual risk factors (e.g., age; presence of chronic medical conditions, including immunocompromising conditions; pregnancy) require engaging in an interactive process to determine if those workers can be accommodated with respect to this risk factors. The CDC recommends employers offer these workers at risk different tasks less likely to expose them.

Require sanitary measures such as frequent and thorough hand washing, including by providing workers, customers, and worksite visitors with a place to wash their hands.

Prohibit use of other workers’ phones, desks, offices, or other work tools and equipment, when possible.

Develop policies and procedures for prompt identification and isolation of sick people

Employers should instruct and encourage employees to self-monitor for signs and symptoms of COVID-19 if they suspect possible exposure.

Employers should develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.

Employers should develop policies and procedures for immediately isolating people who have signs and/or symptoms of COVID-19, and train workers to implement them. Move potentially infectious people to a location away from workers, customers, and other visitors.

Restrict the number of personnel entering isolation areas.

Develop, Implement and Communicate about Workplace Flexibilities and Protections

Ensure compliance with the paid sick leave policies of the Families First Coronavirus Response Act (FFCRA) and also that other non-FFCRA leave policies are flexible and consistent with public health guidance, and that employees are aware of these policies. Be aware of employee concerns about pay, leave, safety, health and other issues that may arise during infectious disease outbreaks.

Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

Employee Vacation or Other Travel

Employers may restrict the work-related travel of their employees to affected areas, and many companies have banned all non-essential air travel for the time being, which is permitted.

CDC currently recommends that individuals stay home for 14 days from the time they left an area with widespread, ongoing community spread (Level 3 Travel Health Notice countries) and practice social distancing. The CDC is also recommending that individuals who were on a cruise in the past 14 days limit interactions with others; if the individual was on a ship that reported a case of COVID-19, the individual is advised to stay at home for 14 days and practice social distancing.

Employers should not force employees to cancel personal travel plans, though they can certainly make a recommendation against travel to certain regions. However, courts have held that the protections of the ADA do not apply where an employer takes an employment action based on the potential for an employee to become ill and disabled in the future.

Employers should check the OSHA and CDC websites regularly for updates about recommended personal protective equipment (PPE). During an outbreak of an infectious disease, such as COVID-19, recommendations for PPE specific to occupations or job tasks may change depending on geographic location, updated risk assessments for workers and information on PPE effectiveness in preventing the spread of COVID-19.